[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Rules and Regulations]
[Pages 17751-17754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06259]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2020-0195]
RIN 1625-AAOO
Safety Zone; Mamala Bay, Honolulu, HI--Voluntary First Amendment
Zone
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone for
navigable waters within Mamala Bay, Honolulu Hawaii. The safety zone is
needed to protect personnel and vessels who may want to exercise their
First Amendment in the vicinity of Honolulu Harbor and Honolulu
Channel. Entrance into the safety zone does not require notification to
the COTP or the COTP's designated representative; however persons or
vessels operating within the safety zone shall travel at the minimum
speed necessary to maintain a safe course. Addtionally, each person in
the safety zone must comply with all lawful orders or directions given
to them by the COTP or the COTP's designated representative. Vessels
wishing to enter the safety zone will not be allowed to cross an active
security zone and should make alternative arrangements if necessary.
DATES: This rule is effective without actual notice from March 31, 2020
through 11:59 p.m. April 17, 2020. For the purposes of enforcement,
actual notice will be used from March 20, 2020 through March 31, 2020.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0195 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket
[[Page 17752]]
Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LCDR Joshua Williams, Chief of Waterways Management,
Sector Honolulu, U.S. Coast Guard; telephone 808-541-4359, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because immediate action is needed to protect
the public exercising their First Amendment rights in an area that a
large passenger vessel will need to transit, and therefore publishing
an NPRM is impracticable and contrary to public interest.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable because immediate action is needed to
allow inviduals a safe location to exercise their First Amendment
rights.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP)
Honolulu believes that given the nature of the First Amendment activity
expected and the likely type of vessels used by individuals desiring to
express their First Amendment rights--namely kayaks and other small
vessels--the safety zone designating a voluntary First Amendment Area
is necessary to ensure the safety of those vessels and persons who
choose to express their views safely and without interference from, or
interfering with, other maritime traffic.
IV. Discussion of the Rule
From March 20, 2020 through April 17, 2020 there could be a number
of large passenger vessels calling on the port of Honolulu. During
these historic times taking place around the United States, there are
individuals who have the desire to exercise their First Amendment
rights. Therefore, this safety zone is located within the COTP zone
(See 33 CFR 3.70-10) and will encompass an area beginning at a point
21[deg]17'52'' N, 157[deg]52'61'' W near the shore of Sand Island,
thence West to a point 21[deg]17'52'' N, 157[deg]52'77'' W, thence
South to a point 21[deg]17'37'' N, 157[deg]52'77'' W near the coastal
waters of Mamala Bay, thence East to a point 21[deg]17'37'' N,
157[deg]52'61'' W, thence to the beginning point. This zone extends
from the surface of the water to the ocean floor, while large passenger
vessels are transiting Honolulu channel. Entrance into the safety zone
does not require notification to the COTP or the COTP's designated
representative; however persons or vessels operating within the safety
zone shall travel at the minimum speed necessary to maintain a safe
course. Additionally, those in the safety zone must comply with all
lawful orders or directions given to them by the COTP or the COTP's
designated representative. Vessels wishing to enter the safety zone
will not be allowed to cross an active security zone and should make
alternative arrangements if necessary.
While the Coast Guard is concerned about any security threats to
the areas described above, the Coast Guard is likewise committed to
ensuring that individuals who wish to express their opinions on any
issue during these large passenger vessel transits, have the means to
do so in a manner that protects them and other vessels operating on
Mamala Bay and surrounding waters. Therefore, this safety zone is
located within the COTP zone (See 33 CFR 3.70-10) and will encompass an
area beginning at a point 21[deg]17'52'' N, 157[deg]52'61'' W near the
shore of Sand Island, thence West to a point 21[deg]17'52'' N,
157[deg]52'77'' W, thence South to a point 21[deg]17'37'' N,
157[deg]52'77'' W near the coastal waters of Mamala Bay, thence East to
a point 21[deg]17'37'' N, 157[deg]52'61'' W, thence to the beginning
point, wherein the Coast Guard will allow demonstrators or any
individual who wishes to express their views. This area is being
established to allow individuals expressing their views the means to do
so in a safe manner to their intended audience without posing an undue
risk to maritime safety. After analyzing maritime traffic patterns and
other environmental factors, the Coast Guard is requiring that any
persons or vessels permitted to operate within the safety zone shall
travel at the minimum speed necessary to maintain a safe course. The
navigation rules shall apply at all times within the safety zone.
Anchoring is prohibited within this zone.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the size,
location, duration, and time of year of the safety zone. Vessel traffic
will be able to safely transit around the safety zone; the zone will
impact a small designated area and will be enforced only during the
event and event-related activities. The safety zone will be in a
location where commercial vessel traffic is expected to be minimal
during enforcement; commercial vessel traffic will be authorized to
transit the safety zone to the extent compatible with public safety and
security. Persons and vessels will be able to operate in the
surrounding area adjacent to the zone during the enforcement period,
and will be able to enter within the safey zone if authorized by the
Captain of the Port Honolulu or a designated representative. Moreover,
the Coast Guard will issue a Broadcast to Mariners via VHF-FM maine
channel 16 about the zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The
[[Page 17753]]
term ``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have a significant economic
impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves a
safety zone enforced intermittently between March 20, 2020 through
April 17, 2020 that will prohibit entry into an area beginning at a
point 21[deg]17'52'' N, 157[deg]52'61''W near the shore of Sand Island,
thence West to a point 21[deg]17'52'' N, 157[deg]52'77'' W, thence
South to a point 21[deg]17'37'' N, 157[deg]52'77'' W near the coastal
waters of Mamala Bay, thence East to a point 21[deg]17'37'' N,
157[deg]52'61'' W, thence to the beginning point. It is categorically
excluded from further review under paragraph L60(d) of Appendix A,
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of
Environmental Consideration supporting this determination is available
in the docket. For instructions on locating the docket, see the
ADDRESSES section of this preamble.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section to coordinate protest activities so
that your message can be received without jeopardizing the safety or
security of people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine Safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Secruity Delegation No. 0170.1.
0
2. Add Sec. 165.T14-0195 to read as follows:
Sec. 165.T14-0195 Safety Zone; Pacific Ocean, Mamala Bay, HI--
Voluntary First Amendment Zone
(a) Location. The safety zone is located within the COTP Zone (See
33 CFR 3.70-10) and will encompass all navigable waters at an area
beginning at a point 21[deg]17'52'' N, 157[deg]52'61'' W near the shore
of Sand Island, thence West to a point 21[deg]17'52'' N,
157[deg]52'77'' W, thence South to a point 21[deg]17'37'' N,
157[deg]52'77'' W near the coastal waters of Mamala Bay, thence East to
a point 21[deg]17'37'' N, 157[deg]52'61'' W, thence to the beginning
point. This zone extends from the surface of the water to the ocean
floor.
(b) Regulations. The general regulations governing safety zones
contained in 33 CFR 165.23 apply to the safety zone created by this
temporary final rule.
(1) All persons are required to comply with the general regulations
governing safety zones found in 33 CFR part 165.
(2) Entry into or remaining in this zone does not require
notification to the COTP or the COTP's designated representative;
however persons or vessels operating within the safety zone shall
travel at the minimum speed necessary to maintain a safe course. Under
the general safety zone regulations in Sec. [thinsp]165.23(d) of this
part, each person in the safety zone must comply with all lawful orders
or directions given to them by the COTP or the COTP's designated
representative. Vessels wishing to enter the safety zone will not be
allowed to cross an active security zone and should make alternative
arrangements.
[[Page 17754]]
(3) Persons desiring to transit the safety zone identified in
paragraph (a) of this section may contact the COTP at the Command
Center telephone number (808) 842-2600 and (808) 842-2601, fax (808)
842-2642 or on VHF channel 16 (156.8 Mhz).
(4) The U.S. Coast Guard may be assisted in the patrol and
enforcement of the safety zone by Federal, State, and local agencies.
(c) Notice of enforcement. The COTP Honolulu will cause Notice of
the Enforcement of the safety zone described in this section to be made
by Broadcast to the maritime community via marine safety broadcast
notice to mariners on VHF channel 16 (156.8 MHz).
(d) Definitions. As used in this section, designated representative
means any Coast Guard commissioned, warrant, or petty officer who has
been authorized by the COTP to assist in enforcing the safety zone
described in paragraph (a) of this section.
(e) Enforcement period. This rule will be enforced interminttently
from March 20, 2020, through 11:59 p.m. on April 17, 2020. If the
safety zone is terminated prior to 11:59 p.m. on April 17, 2020, the
Coast Guard will provide notice via a broadcast notice to mariners.
Dated: March 20, 2020.
A.B. Avanni,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2020-06259 Filed 3-30-20; 8:45 am]
BILLING CODE 9110-04-P